COURT OF APPEALGUNAWARDENA. J.
MC WARAKAPOLA NO. 17641
Primary Courts' Procedure Act, No. 44 of 1979 – Sections 66(6) and 66(7)of the Primary Courts' Procedure Act – Jurisdiction to make Order -Precedent condition – Duty to'encourage to facilitate dispute settlement.
The Primary Court Judge was under a peremptory duty to encourageor make every effort to facilitate dispute settlement before assumingjurisdiction to hold an inquiry into the matter of possession and imposeon the parties a settlement by means of Court order.
The making of an endeavor by the Court to settle amicably is acondition precedent which had to be satisfied before the function of thePrimary Court under section 66(7) began to consider who had been inpossession.
The fact that the Primary Court had not made an endeavor topersuade parties to arrive at an amicable settlement fundamentallyaffects the capacity or deprives the Primary Court of competence to holdan inquiry into the question of possession.
APPLICATION for revision from the Order of the Magistrate’s Court ofWarakapola.
Faiz Musthapha, P.C., with S.N. Senanayake for petitioner.
Aloy Ratnayake, P.C.. with R.A.D. Kumarawickrema for lal respondent.
May 25, 2001.
U. de Z. GUNAWARDENA, J.This is an application to revise an order made on21. 11. 1990, by the learned Primary Court Judge (Warakapola)
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under section 68(2) of the Primary Courts' Procedure Act.whereby he had held that the 1SI respondent (A.M.M. Abdeen)had been in possession and so was entitled to continue topossess lot 9 of the land called Nugagahamulahena. Thelearned Primary Court Judge, although he had not said so inso many words, presumably intended to say that the Is*respondent-respondent had been in possession at the relevantdate i.e. 25. 07. 1990 that being the date on which informationhad been filed by the police under section 66 of the PrimaryCourts' Procedure Act, No. 44 of 1979 (as amended), in regardto the dispute between 2nd respondent-petitioner (Ameer AliHalaldeen Ali) and the lsl respondent-respondent with respectto the possession of the relevant lot. It is common-groundthat the said lot 9 which is the subject-matter of thisapplication had been left un-allotted by the fined decree in thepartition action No. 13256 D.C. Kegalle which appears to havebeen entered on 15. 05. 1979. The 2nd respondent-petitionerstates that this lot was owned and possessed by Nisi Ummaand Sattu Umma Husaima who on deed No. 2518-
06. 1986 (P3) transferred the same to Hassen. The saidHassen had transferred the same on deed No. 6257 dated31. 12. 1989 to the 2nd respondent-petitioner.
In this case, the court is called upon to reach a decisionon affidavits. The decision arrived at after accomplishing sucha feat would be an example of a process of something akin toguessing.
The order dated 21. 11. 1990 made by the learned PrimaryCourt Judge has to be vacated since he had made that orderwithout complying with a precedent-condition, as explainedin the sequel. And, as such he had no jurisdiction to makethe order he did. Conditio praecedens adimpleri debet priusquam sequatur ejfectus. It means that the condition-precedentmust be fulfilled before the effect can follow. To explain thematter further, it is pertinent to consider the effect,respectively, of the operation of sections 66(6) and 66(7) ofthe relevant Act, which, merits quotation, in this context, and
Ali v. Abdeen (Cunawardena, J.)
are as follows: sec. 66(6): on the date fixed for filing affidavitsand documents . . . the court shall before fixing the case forinquiry make every effort to induce parties and personsinterested (if any) to arrive at a settlement of the dispute …"sec. 66(7) : where the parties and persons interested (if any)do not arrive at a settlement, the court shall fix the case forinquiry. . .”
Thus, it is to be observed that the Primary Court Judgewas under a peremptory duty to encourage or make everyeffort, so to say, to facilitate dispute settlement, beforeassuming jurisdiction to hold an inquiry into the matter ofpossession and impose on the parties a settlement by meansof the court order. It was obligatory on the Primary Court as acondition-precedent to holding an inquiry, to have made aconscious endeavor to have composed or ironed out thedifferences between the parties-a duty which, in this instance,had been neglected. The making of an effort by the court wassuch a duty as should have been done or performed beforethe court could have validly embarked upon an inquiry inpursuance of or rather in compliance with sec. 66(7) set outabove. That is a preliminary requirement which has to befulfilled before the jurisdiction of the Primary Court exists tohold an inquiry under section 66(7). When Parliament hasenacted that provided a certain situation exists, then a tribunalmay have certain powers it is clear that the tribunal will nothave those powers unless that situation exists. The makingof an endeavor by the court to settle amicably is a conditionprecedent which had to be satisfied before the function of thePrimary Court under sec. 66(7) began, that is, to considerwho had been in possession. Since the Primary Court hadacted without jurisdiction in proceeding to determine thequestion of possession, its decision is, in fact, of no force oravail in law. Accordingly the decision dated 21. 11. 1990 ishereby set aside. It is the making of an effort to induce partiesand the fact that the effort was not attended with successthat clothe the Primary Court with jurisdiction to initiate aninquiry with regard to the question as to who was in
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possession. The fact that the Primary Court had not made anendeavor to persuade parties to arrive at an amicablesettlement fundamentally affects the capacity or deprives thePrimary Court of competence to hold an inquiry into thequestion of possession.
For the sake of completeness. I must say that the fact,that the judgment in this case was due was brought to mynotice only towards end of March 2001.
The order dated 21. 11. 1990 is set aside. The PrimaryCourt is directed, if the parties so desire, to hold a fresh inquiryin compliance with the provisions of the Primary Courts’Procedure Act, No. 44 of 1979 (as amended).
Order of the Primary Court set aside.
ALI v. ABDEEN